[Redacted], Virgilio W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 12, 2022

Appeal No. 2021003608 (E.E.O.C. Dec. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virgilio W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003608 Agency No. 200J-0578-2020101081 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 12, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer (GS- 6) at the Agency’s Edward Hines Jr. Medical Center in Hines, Illinois. On December 24, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on his national origin (Russian), and in reprisal for prior protected EEO activity, when: 1. in January 2019, Complainant was called “commie” and subjected to hostile looks, comments, jokes, and laughs; his weapon was switched; and his complaints were ignored; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021003608 2 2. on or about December 11, 2019, a Security Specialist commented on having sex with Russian women and said that they were “easy”; 3. on December 12, 2019, the Security Specialist stated that managers would not train Complainant, “probably because you are from Russia and he doesn’t fully trust you”; 4. in November 2019, a Lieutenant stalked Complainant; 5. since December 18, 2019, Complainant was subjected to daily “Russo-phobia”; 6. on August 8, 2019, Complainant was not selected for a promotion to the position of a GS-7 Police Sergeant, under vacancy number HN-10555173-19-MH; and 7. on December 15, 2019, Complainant was required to install a government application on his personal cellphone. The Agency noted that claim 6 was a discrete claim but was untimely; as such, it would only be considered as part of Complainant’s harassment claim. The Agency accepted claim 7 as a timely independent claim, in addition to a part of the overall harassment claim. Report of Investigation (ROI) at 42-3. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The instant appeal followed, but Complainant did not submit a brief in support of his appeal. The Agency opposed Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2021003608 3 Disparate Treatment (Claim 7) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his national origin, and in reprisal for prior protected EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for claim 7. The Major explained that the Security Specialist asked to have all the Police Officers download a new emergency notification system onto their phones. The notification application would allow them to see when and where there were emergencies in the building, including active threat situations. The Major informed Complainant that he was not required to download the application. ROI at 108-9. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant only offers that this claim was based on his national origin because management officials were aware of his national origin and the Major stated that, if Complainant had any connection to Russia, he would “sic the CIA on” him. ROI at 94. However, Complainant corroborated that all employees in the building were notified of the requirement to install the application and he was later informed that he did not have install it. Further, Complainant conceded that this action had nothing to do with his EEO activity. ROI at 95. Complainant did not show that the proffered reasons are not worthy of belief, and his bare assertions that management officials discriminated against him are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his national origin, or in reprisal for protected EEO activity, for claim 7. 2021003608 4 Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of his alleged bases for claim 7. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment based on his national origin, or in reprisal for protected EEO activity, for claim 7. Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to protected classes based on his national origin and protected EEO activity, and that he was subjected to unwelcome verbal conduct. However, Complainant did not establish that the weapon switch in claim 1, or incidents 4 or 7, were based on a protected category. Complainant stated that he was assigned a weapon with a particular serial number and noticed that he was given weapons with different serial numbers. However, Complainant did not know who switched his weapons. ROI at 85. An Instructor explained that it was possible that during training, a firearm might need repair or cleaning, so it would be changed for a student. ROI at 141. For incident 4, Complainant alleged that a Lieutenant stalked him while driving home, but Complainant responded that he did not know that his national origin was a factor and his EEO activity was unrelated to this incident. ROI at 90. The Lieutenant denied stalking Complainant and explained that his shift ends at 4 p.m., while Complainant got off work at midnight, and he would not come back to follow Complainant. ROI at 127. Regarding claim 7, Complainant averred that he did not believe that his national origin was the reason for his non-selection and that this claim had nothing to do with his EEO complaint. Rather, Complainant contended that he was informed that if one was previously a GS-7, it would be easier to make Sergeant and he had been a GS-7 at a different agency. Complainant asserted that his non-selection was not harassing, but simply “not fair.” ROI at 92-3. Accordingly, we find that Complainant did not establish that the weapon switch, or incidents 4 or 7, were due to his national origin or protected EEO activity. 2021003608 5 For incidents 2, 3, and 5, we find that the record does not substantiate that the incidents occurred as alleged. Complainant admitted that the Security Specialist did not state that Russian women were “easy” but that he had relations with many Russian women while stationed in Germany. ROI at 87. The Security Specialist explained that, when Complainant asked him about dating Russian women, he responded that he dated Russian women and was still friends with them because they were easy to get along with. ROI at 132. Regarding incident 3, Complainant stated that his claim was misinterpreted, and that an unnamed coworker informed him that the Security Specialist trained him to fix key entry doors. Complainant asked why the Security Specialist would train the coworker and not Complainant, and the coworker responded in a joking manner that it was probably because Complainant was Russian, and the Security Specialist did not trust him. ROI at 88. Complainant averred that his allegation that he was subjected to “Russo-phobia” was also misinterpreted, and that the Security Specialist would watch the news and make comments about “Russian meddling” in the election and look at Complainant (incident 5). ROI at 90. The Security Specialist denied making any comments about Russian meddling in the election. ROI at 132. Complainant also claimed that unnamed employees would make comments about his connections to Russia and asked why he worked in a federal law enforcement law job, and not a small police department, because he was from Russia. ROI at 90. For these incidents, Complainant alleged that various employees made comments and jokes, and gave him looks, based on his national origin. However, the Agency was unable to obtain statements from these employees because Complainant did not identify them; he did not provide any witness statements to support these allegations; and the Security Specialist denied making the alleged comments. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Here, Complainant did not provide any corroborating evidence showing that incidents 2, 3, or 5 occurred as described. For claim 1, Complainant alleged that an Officer called him “commie” in late 2019. When Complainant informed him that “commie” was a derogatory term for individuals from Eastern Europe or Russia, the Officer ceased using the term. ROI at 78-9. 2021003608 6 We find that this incident was isolated and generally, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” Kozak v. United States Postal Service, EEOC Appeal No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Appeal No. 0120083387 (Feb. 4, 2010). For the additional incidents in claim 1, we note that they occurred while Complainant was in training at the Academy for approximately two months, but the dates of his attendance are not in the record. ROI at 78. Complainant alleged that several people in his class yelled “commie,” but he was not able to identify the individuals; and a Coach asked, “where is the Russian?” and asked Complainant, “did you talk to Trump this morning?” ROI at 78-9. Crediting Complainant’s contention that these unwelcome events were based on his national origin and that they created a hostile or offensive work environment, we find that there is no basis for imputing liability to the Agency. An employer may be subject to vicarious liability for harassment by a supervisor who does not have actual authority over the employee, if the employee reasonably believed that the harasser had such power. However, if the harasser had no actual supervisory power over the employee, and the employee did not reasonably believe that the harasser had such authority, then the standard of liability for coworker harassment applies. See Marielle L. v. Social Security Admin., EEOC Appeal No. 0120162299 (Mar. 29, 2018). The Coach noted that he was providing a lecture at the Academy. ROI at 478. There is no indication that the Coach was in Complainant’s chain of command or that Complainant believed that the Coach had actual supervisory authority over him. As such, the coworker standard is appropriate. In a case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999). See Jones v. Dep’t of Labor, EEOC Appeal No. 01A41672 (Oct. 22, 2004) (management official’s failure to address an ongoing tense situation between the complainant and a coworker based on her protected class stated a claim under Title VII). Here, we find that the Agency did not ignore his complaints and it took immediate and appropriate corrective action to address Complainant’s reporting of these events on January 23, 2019. Complainant averred that the Assistant Director came to the class and informed them that discrimination would not be tolerated and would be cause for dismissal from the Academy. ROI at 230-1, 79. In addition, the Agency initiated a fact-finding for the Coach’s comments. The Coach admitted that he asked the class, “where is the guy from Russia, or Russian?” and stated to Complainant, “relax, I am not going to ask you any questions about Trump.” The Coach asked Complainant to translate the phrase, “too much or too little finger on the trigger,” to demonstrate that Complainant’s phrase sounded more impressive, but that if one did not understand the words, one would not be able to follow the advice. 2021003608 7 The Coach informed the class that the moral of his story was that, if you do not understand what is being said, you should ask questions, and it is not insulting to ask for clarification. On January 25, 2019, the Agency issued a Written Counseling to the Coach to inform him that his comments were insensitive and unacceptable. ROI at 477-81. We find that the Agency acted promptly to address Complainant’s complaints of harassment, and there is no evidence that Complainant reported subsequent incidents of harassment while at the Academy.2 Accordingly, we find that Complainant did not establish that the Agency subjected him to harassment based on his national origin. Further, to ultimately prevail in his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). Here, there is no evidence to connect any of the complained of actions to a retaliatory motive based on Complainant’s protected EEO activity, and we find that Complainant did not prove that he was subjected to retaliatory harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that he was discriminated against as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2 Complainant averred that, after he reported the discrimination, he was attacked by unknown individuals downtown, and he believed that this was in retaliation by the Academy. ROI at 41. However, the Assistant Director noted that Complainant reported being attacked at a bar, but since this assault occurred off-station, the Agency could not take action. ROI at 138. 2021003608 8 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2021003608 9 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 12, 2022 Date